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                                 BRB Nos. 98-646
                                 and 98-646A

BERNARD I. SLADE, Jr.                   )
                         )
          Claimant-Petitioner           )    DATE ISSUED:   02/02/1999    
 
          Cross-Respondent              )
                         )
     v.                            )
                         )
COAST ENGINEERING and              )
MANUFACTURING COMPANY         )
                         )
     and                           )
                         )
INSURANCE COMPANY OF NORTH         )
AMERICA                            )
                         )
          Employer/Carrier-             )
          Respondents                   )
          Cross-Petitioners             )    DECISION and ORDER

     Appeals of the Decision and Order and Supplemental Decision and Order
     Awarding Attorney Fees of C. Richard Avery, Administrative Law Judge,
     United States Department of Labor.

     James B. Galloway (Butler, Snow, O'Mara, Stevens & Cannada, P.L.L.C),
     Gulfport, Mississippi, for claimant.

     Christopher A. Davis (Hopkins, Crawley, Bagwell, Upshaw & Persons,
     P.L.L.C.), Gulfport, Mississippi, for employer/carrier.

     Before: HALL, Chief Administrative Appeals Judge, SMITH, Administrative
     Appeals Judge, and NELSON, Acting Administrative Appeals Judge.

     PER CURIAM:

     Claimant appeals the Decision and Order and employer appeals the Supplemental
Decision and Order Awarding Attorney Fees (97-LHC-522) of Administrative Law Judge
C. Richard Avery rendered on a claim filed pursuant to the provisions of the
Longshore and Harbor Workers' Compensation Act, as amended, 33 U.S.C. §901
et seq. (the Act).  We must affirm the findings of fact and conclusions of
law of the administrative law judge which are rational, supported by substantial
evidence, and in accordance with law.  O'Keeffe v. Smith, Hinchman & Grylls
Associates, Inc., 380 U.S. 359 (1965); 33 U.S.C. §921(b)(3).  Moreover,
the amount of an attorney's fee award is discretionary and may be set aside only
if the challenging party shows it to be arbitrary, capricious, an abuse of
discretion, or not in accordance with law. See, e.g., Muscella v. Sun
Shipbuilding & Dry Dock Co., 12 BRBS 272 (1980).

     Claimant was injured on October 6, 1989, when he was working as a leadman on
a barge afloat in the Industrial Seaway.  He attempted to lift an I-beam, but was
unaware that it was still attached to the barge until he put all of his effort into
lifting it, injuring his back.  Claimant began treatment with Dr. Hopper, an
orthopedic surgeon, and underwent back surgery on December 28, 1989.  He reached
maximum medical improvement on June 20, 1990, and was released to work with
restrictions of lifting no more than 35 pounds and  limited bending, stooping,
squatting and climbing.  When he returned to light duty work with employer,
claimant was placed in the manufacturing-engineering  department, and eventually
was moved to the inspection/quality control section.  In December 1991, the plant
was shut down, and claimant was laid off.  

     Claimant again sought medical assistance for his back in 1994 and was treated
by Dr. Bazzone.  Dr. Bazzone performed back surgery on a newly ruptured disc that
was located between the two discs that Dr. Hoppper had previously diagnosed as
ruptured.  Claimant reached maximum medical improvement following this surgery on
May 1, 1995, and sought permanent total disability benefits under the Act.[1] 

     Initially, the administrative law judge found that claimant established
coverage under the Act pursuant to Sections 2(3), 33 U.S.C. §902(3), and 3(a),
33 U.S.C. §903(a).  He also found that the claim was timely filed pursuant to
Section 13 of  the Act, 33 U.S.C. §913.  The administrative law judge applied
the Section 20(a), 33 U.S.C. §920(a), presumption of causation and found that
claimant's second surgery, recovery period and resulting disability are related to
claimant's October 1989 injury.  The administrative law judge found that claimant
was unable to return to his former employment following his first surgery, but that
he had returned to employer's facility from July 1, 1990 until December 31, 1991,
in a position that was not sheltered employment, and thus employer established
suitable alternate employment for this period.  The administrative law judge
rejected employer's contention that claimant did not have a loss in wage-earning
capacity during this period and awarded claimant permanent partial disability
benefits pursuant to Section 8(c)(21), 33 U.S.C. §908(c)(21). The
administrative law judge also found that employer's vocational rehabilitation
counselor opined that claimant could immediately have found another light duty
position after his lay-off, and thus he was entitled only to permanent partial
disability benefits following his lay-off until he became totally disabled again
on June 20, 1994.

     The administrative law judge then found that claimant was again entitled to
temporary and permanent total disability benefits, due to the increase in
claimant's symptoms, beginning June 20, 1994, and continuing until April 17, 1996,
when the administrative law judge found that employer established suitable
alternate employment; he thus awarded claimant permanent partial disability
benefits from that date and continuing.  The administrative law judge found that
employer is responsible for all medically necessary care and expenses, including
the surgery performed in 1994 by Dr. Bazzone, but excluding the Jacuzzi prescribed
by Dr. Jackson, which he found was not medically necessary for claimant's care or
recovery.  Finally, the administrative law judge denied employer relief from
continuing compensation liability pursuant to Section 8(f) of the Act, 33 U.S.C.
§908(f).

     In a Supplemental Decision and Order Awarding Attorney Fees, the
administrative law judge awarded claimant's counsel a fee in the amount of $8,900,
representing 71.20 hours of legal services at the hourly rate of $125, plus
expenses in the amount of $142.50.

     On appeal, claimant contends that the administrative law judge erred in
finding that he was not totally disabled from July 1, 1990 to June 19, 1994, as he
contends the light duty work with employer was sheltered employment, and that there
was no evidence of any other available jobs during this period.  Claimant also
contends that the administrative law judge erred in finding that he is entitled
only to continuing permanent partial disability benefits after April 17, 1996, as
he avers the evidence establishes that he cannot perform any of the alternate jobs
identified in employer's labor market survey.  Finally, claimant contends that the
administrative law judge erred in finding that the Jacuzzi was not a necessary
medical expense for which employer is liable pursuant to Section 7 of the Act, 33
U.S.C. §907.  Employer responds, urging affirmance of the administrative law
judge's Decision and Order.  However, in its appeal, employer contends that the
administrative law judge erred in awarding claimant's counsel such a large fee
given that this case did not contain any novel or complex issues and in light of
claimant's limited success.  Claimant has not responded to employer's appeal.

     Initially, claimant contends that the administrative law judge erred in
finding him to be only permanently partially disabled during the period from July
1, 1990 to December 31, 1991, when he worked full-time at light duty for employer
for a lower wage.  Claimant contends that this work was sheltered employment as he
was physically incapable of performing the inspection work and did not have the
training or expertise to perform the inspections he was assigned.  Claimant also
contends that employer did not establish that the light duty work was necessary. 
As claimant established that he is unable to perform his usual work, the burden
shifted to employer to demonstrate the availability of  realistic job opportunities
which claimant could secure if he diligently tried. New Orleans (Gulfwide) Stevedores v.
Turner, 661 F.2d 1031, 14 BRBS 156 (5th Cir. 1981).  An employer's offer of a suitable job
within its own facility is sufficient to establish suitable alternate employment,
if the job is necessary to employer's operation and claimant is physically capable
of performing it. Darby v. Ingalls Shipbuilding, Inc., 99 F.3d 685, 30 BRBS
93 (CRT)(5th Cir. 1996); Peele v. Newport News Shipbuilding & Dry Dock Co.,
20 BRBS 133 (1987).  That the job may be tailored to claimant's restrictions
does not preclude it from meeting employer's burden.   Darby, 99 F.3d at
689, 30 BRBS at 95(CRT); Larsen v. Golten Marine Co., 19 BRBS 54 (1986).

     In the instant case, the administrative law judge rejected claimant's argument
that the light duty work was sheltered employment and found that, while claimant
did not fully use his welding/fabricating experience for the
manufacturing/engineering position, he nonetheless testified that he felt like a
valuable employee and agreed that he performed the work requested.  H. Tr. at 55,
58.  Further as a quality control inspector, claimant testified that he used his
former welding/fabricating experience.  H. Tr. 56.  Contrary to claimant's
contention on appeal, he never testified that he was physically unable to perform
the light duty work assigned.  Moreover, the positions to which claimant was
assigned were in established departments, and he was performing the same duties as
other employees.  Therefore, as the administrative law judge considered claimant's
contention that the light duty work was sheltered employment and rationally
rejected the contention given the evidence of record, we affirm the administrative
law judge's finding that the light duty performed by claimant during this period
was not sheltered employment.   See Darby, 99 F.3d at 689, 30 BRBS at 95
(CRT).

     Claimant also contends on appeal that the administrative law judge erred in
determining the extent of his disability from the time he was laid-off, December
31, 1991, until June 20, 1994, the date the administrative law judge found that
claimant again became temporarily totally disabled.  As claimant correctly asserts,
employer bears the burden  re-establishing suitable alternate employment once
claimant has been laid off from a  light duty position at employer's facility,
through  no fault of his own. Vasquez v. Continental Maritime of San Francisco,
Inc., 23 BRBS 428 (1990); Mendez v. National Steel & Shipbuilding Co., 
21 BRBS 22 (1988).  Thus, the administrative law judge's finding that claimant did
not establish that he was totally disabled during this period as there was no
medical evidence that he could not return to any work is in error.  The
administrative law judge had already concluded that claimant could not return to
his usual duties as a welder-fabricator/leadman, and the burden of proof remained
with employer to establish the availability of suitable alternate employment.
Id.

     The administrative law judge, however, continued his analysis and found that
employer's vocational expert, Don Carlisle, opined that after the lay-off claimant
could have found another light duty position, such as a bench welder position, a
job in a welding shop  or as a tool room attendant position, such as the one
claimant later obtained temporarily.[2]   Thus, we
will review the administrative law judge's findings to determine whether his
conclusion that employer established suitable alternate employment during this
period is supported by substantial evidence.   The Fifth Circuit has held that an
employer may meet its burden of establishing the availability of suitable alternate
employment by demonstrating the availability of realistic job opportunities in the
local community that are within claimant's physical and mental capacities and which
claimant has a reasonable opportunity to secure. Avondale Shipyards, Inc. v.
Guidry, 967 F.2d 1039, 26 BRBS 30 (CRT) (5th Cir. 1992); P & M Crane Co. v.
Hayes, 930 F.2d 424, 24 BRBS 116 (CRT), reh'g denied, 935 F.2d 1293 (5th Cir. 1991).

     Contrary to claimant's contention, Mr. Carlisle did  address the  availability
of alternate positions during this period of time.  He testified that there would
have been numerous jobs available at the time claimant was laid-off, consistent
with claimant's  35 pound lifting restriction, which placed claimant in the light
to medium category of work.  H. Tr. at 98-100.  The positions identified included
bench welding, work in a welding shop, and tool room attendant, such as the
temporary position claimant obtained and successfully performed, as well as
positions similar to those claimant performed for employer while on light duty. 
Id.  As the administrative law judge credited the vocational expert's testimony
that there were jobs available during this period which claimant could perform,
based on his physical restrictions, background and experience, we affirm the
administrative law judge's finding that employer established suitable alternate
employment during the period following claimant's lay-off, January 1, 1992 until
June 20, 1994, as it is supported by substantial evidence and claimant has raised
no reversible error on appeal. Guidry, 967 F.2d at 1045, 26 BRBS at 34(CRT).

     Claimant next contends that he is physically incapable of performing the
positions identified by Mr. Carlisle in the labor market survey dated April 17,
1996, and thus is entitled to continuing permanent total disability benefits.   As
claimant established that he could not return to his former longshore work
following his second surgery, the administrative law judge reviewed the evidence
in order to determine whether employer established the availability of suitable
alternate employment.   Turner, 661 F.2d at 1031, 14 BRBS at 156.  In
addition to the labor market survey dated April 17, 1996,[3]   the record includes  medical reports of several physicians and
therapists. See Cl. Ex. 6; Emp. Exs.  2, 7.  Mr. Carlisle testified he took
all of the medical opinions into consideration in identifying suitable jobs.  H. 
Tr.  at 94-96.  Moreover,  Dr. Bazzone stated that claimant could perform the
positions of drafter, cashier, security guard, reservations clerk, night auditor
at a hotel, and desk clerk at a hotel.  Emp. Ex. 20 at 13-15.  Although Dr. Bazzone
did opine early in his deposition that claimant was "probably unable to undertake
any type of gainful employment when he left" the doctor's care, Emp. Ex. 20 at 11,
he also testified that claimant had the physical capacity to do the jobs identified
by employer, with the exception of a clerk at a food mart, due to the lifting
required for restocking, Emp. Ex. 20 at 13-16.  As the administrative law judge
discussed all the relevant evidence and as the record contains substantial evidence
supporting his conclusion that claimant could perform the identified alternate
employment as of April 17, 1996, we affirm the administrative law judge's finding
that employer established the availability of suitable alternate employment, and
thus affirm the award of continuing permanent partial disability benefits.
Mendoza v. Marine Personnel Co., Inc., 46 F.3d 498, 29 BRBS 79 (CRT) (5th
Cir. 1995).

     Claimant's final contention on appeal is that the administrative law judge
erred in finding that the Jacuzzi prescribed by Dr. Jackson was not a reasonable
and necessary expense for which employer is liable.  Section 7(a) of the Act, 33
U.S.C. §907(a), provides that employer must furnish medical, surgical, and
other attendance or treatment, nursing and hospital services, medicine, crutches,
and apparatus, for as long as the nature of the injury or the recovery process
requires.  In order for a medical expense to be assessed against employer, the
expense must be both reasonable and necessary. Dupre v. Cape Romain Contractors,
Inc., 23 BRBS 86 (1989); Pernell v. Capitol Hill Masonry, 11 BRBS 532
(1979). 

     In the present case, in a report dated October 3, 1996, Dr. Jackson noted that
he strongly re-emphasized the need for continuing exercise therapy program
utilizing a heated pool area in addition to the hot tub he recommended for
claimant's home use.  Cl. Ex. 4.  In addition, he wrote a prescription for the
Jacuzzi dated November 27, 1996.  Cl. Ex. 10.  Dr. Bazzone testified that another
physician may well feel a Jacuzzi is necessary, but he has found that they are only
good for a couple of hours of relief.  Emp. Ex. 29 at 21.  The definition of
medical care includes laboratory, x-ray, and other technical services, prosthetic
devices, and any other medical service or supply.  20 C.F.R. §702.401; see
Dupre, 23 BRBS at 94 (Board held modifications to claimant's house constitute
covered medical expenses); Day v. Ship Shape Maintenance Co., 16 BRBS 38
(1983)(Board held that van with automatic lift was covered medical expense);
Miranda v. Excavation Construction, Inc., 13 BRBS 882 (1981)(Board held move
to warmer climate may be covered medical expense).   As the record contains
evidence that a qualified physician specifically recommended that claimant use a
hot tub in his physical therapy program and prescribed the Jacuzzi for home
treatment, and Dr. Bazzone admitted that some physicians find them useful, we must
vacate the administrative law judge's finding that employer is not liable for this
expense. See generally Amos v. Director, OWCP, 151 F.3d 1051, 32 BRBS
144 (CRT) (9th Cir. 1998).  On remand, the administrative law judge must reconsider
this issue.  The fact that the treatment may be only  palliative and not curative
does not prevent employer from being liable if the expense is reasonable and
necessary.  The  administrative law judge, however, may consider whether the record
contains evidence that some other type of treatment or facility would serve
claimant's needs as well. See generally Schoen v.  U.S. Chamber of Commerce,
30 BRBS 112 (1996).

     In its appeal, employer contends that the administrative law judge erred in
awarding  a fee of $8,900,  given the limited success claimant obtained and the
lack of complexity of this case.   The administrative law judge specifically
addressed employer's contention that the fee requested was too high in view of
claimant's success.  He rejected the contention, finding that claimant  was
successful in his claim as he fully prevailed on the issues of coverage under the
Act, the statute of limitations, causation and medical expenses (with the exception
of the Jacuzzi).  Moreover, although claimant was awarded continuing permanent
partial disability benefits rather than the permanent total disability benefits he
sought, employer had contested all medical and disability benefits for claimant's
second surgery and his condition following the surgery. See, e.g., H.Tr. 
at 10.  The administrative law judge further considered employer's objections to
the number of hours spent on trial preparation and found that given the number of
issues raised by employer in this claim, the request was reasonable and necessary
under the facts of this case.  The administrative law judge did reduce the fee by
5.7 hours in response to employer's objection that the time requested for
claimant's brief was excessive.  Inasmuch as the administrative law judge
specifically addressed employer's contentions, and as employer has not met its
burden of establishing that the administrative law judge abused his discretion in
awarding a fee of $8,900 in light of the issues raised and claimant's success
therein, we affirm the administrative law judge's fee award. See generally
Ingalls Shipbuilding, Inc. v. Director, OWCP [Baker], 991 F.2d 163, 27 BRBS
14 (CRT) (5th Cir. 1993); see also Hensley v. Eckerhart, 461 U.S. 424
(1983); George Hyman Construction Co. v. Brooks, 963 F.2d 1532, 25 BRBS 161 
(CRT) (D.C. Cir. 1992).

     Accordingly, the administrative law judge's Decision and Order finding that
the Jacuzzi was a not a necessary medical expenses is vacated and the case is
remanded for further consideration consistent with this decision.  The decision is
affirmed in all other respects.  In addition, the Supplemental Decision and Order
Awarding Attorney Fees is affirmed.

     SO ORDERED.




                                                                   
                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge



                                                                   
                         ROY P.  SMITH
                         Administrative Appeals Judge



                                                                   
                         MALCOLM D.  NELSON, Acting
                         Administrative Appeals Judge

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Footnotes.


1)Employer voluntarily paid claimant temporary total disability benefits from October 7, 1989 to July 28, 1990, and from November 8, 1994 to May 23, 1995. Employer paid claimant permanent total disability benefits from May 23, 1995 to June 3, 1997. Back to Text
2)In October 1992, claimant obtained a 15-day position in a tool room, after receiving Dr. Hopper's approval. Claimant testified that the job paid $13.70 per hour, that the job did not entail any lifting, and that he could stand, sit or lie down on a cot while on the job. Back to Text
3)The positions identified include positions in drafting, and as a casino security officer, casino cashier, reservations clerk, night auditor, desk clerk, and a cashier-stock person. The administrative law judge rejected the position of cashier-stock clerk based on Dr. Bazzone's opinion that it would not fit claimant's physical restrictions. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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